Wednesday, May 16, 2012

Why The Government Can't Get Out of the Marriage Business

As the US continues it's "national conversation" on same sex marriage, it's fairly standard for someone to suggest that it's time for the state to get out of the marriage business and have marriage be a strictly religious/personal arrangement. This seems like a fairly neat way to sidestep the issue of having to reach a state consensus on what marriage is, with the inevitable one-side-tramples-the-other problem that suggests. However, I'd like to suggest that it's an impractical and illusory solution.

To start with, I think we need to look at why the state is involved in marriage in the first place. I'd suggest that the reason has little to do with managing morals or family values, it has to do with the essential function of government: being an arbiter in disputes, primarily about property. In this regard the state ends up needing to define marriage and know who is married in order to answer two questions: who owns what and whose kids are whose.

Say two people have been spending a lot of time together for the last five years. Now they've had an argument and want to not see each other again, but one of them claims that some things in the possession of the other are actually his. Are they? The state gets pulled into these questions because its job is to arbitrate disputes rather than leaving people to solve them the old fashioned way (which was by raising themselves up on their hind legs and bashing each over the head with flint axes.)

Marriage is a relationship in which property and resources are shared, and so when one breaks up the state ends up negotiating the breakup. People who are not married own the things that they themselves hold title to, and if they have a fight and stop seeing each other, the that shrugs its shoulders. My wife can claim title to a portion of the car or the house even if it is my name that appears on the deeds. My friend cannot.

Since the state also likes to tax people and make sure that they're taking care of their dependents, it also needs to know who is married in order to know who can claim to be a household for the purposes of taxes, child custody, etc.

For this reason, any state which isn't borderline anarchic is going to have to know who forms a household, which traditionally has meant knowing who is married. Despite this, "civil marriage" is relatively new. In the past, figuring out who was married was pretty easy: someone went down to the church register and checked to see if a couple were married, or you just asked the neighbors, "Were these people married?"

As cultural consensus has broken down and society has become more mobile and impersonal (and also as the state sought to replace religion and culture as the primary context of people's existence) civil marriage was instituted to give the state a clear and easy way of knowing who formed a household: If you were married, yes. If not, no.

And here is where we run into the problem: In our modern world, living arrangements have become more complex than ever. Almost everyone has enough property to fight over -- as anyone who's ever been stuck watching Judge Judy in a waiting room knows -- and due to changing morals and the affluence that allows people to turn their attention away from the basic "survive and produce the next generation" household structures which have characterized most prior societies. (For instance, despite all the talk about homosexuality in the Classical world, even men who preferred their own sex were expected to marry and produce children, whatever their extracurricular activities. In our modern world, this expectation no longer exists.)

The state cannot duck the situation, because arbitrating property disputes is one of its most basic purposes, and determining who constitutes a household is one of the basic elements of resolving property disputes. And yet, any modification to the definition of marriage/household as recognized by the state is necessarily fraught with cultural and moral significance because it effectively means changing the definition of what a recognized or proper family is.

19 comments:

The arbitration side of things is different from issuing marriage licenses. Property disputes can end up in civil court, but it can be written into the contract that non-state arbitration be used first. Thus, we could have a Catholic marriage and Catholic arbitration.

But this is all rather simplistic, easy to imagine once you are on the right page, and that page is this- the state is oriented against you and the Church. Our politicians have lost their understanding of marriage as the basic building block of society, as necessary for creation any sort of healthy governance, and they are now actively subverting actual marriage. They will soon go beyond this- the divorce industry needs new victims. So-called conservatives will bring gay marriage in if the left can't, because both parties are leavened with lawyers. They may even expand marriage further, retroactively declaring people who shack-up married, so that lawyers can take advantage there. Must feed the parasites.

I think there is a great deal of difference between our government and, say, Catholic monarchs of old. They are much more akin to family businesses involved in providing good governance. They are also akin to owners interested in the maintenance and upkeep of their realm. The politicians of our day own nothing and have every incentive to spend everything today. They only benefit from what they redistribute. State marriage has become a means for them to redistribute.

Most of those (myself included) who are interested in getting the government out of the marriage business do not mean that the government should not arbitrate - merely that it is patently obvious that the government is already in the business of acting as arbiter for extra marital households and at this point it would be more rational to create some sort of legal household contract that could simplify this arbitration without the necessity of redefining the historical term and reality of marriage.

Essentially, since we've (as a society) disassociated childbearing and -rearing from marriage, and disassociated marriage from communal property ownership (via prenups and states without communal property laws), state validation of marriage no longer adequately serves to protect children or property anyhow - but it does offer just enough in the way of added privileges to make it a bone of contention for households that don't qualify as married.

On the "divorce industry" theory: I find that fairly unpersuasive. The industry of resolving disputes between former couples exists because there are a lot of people willing to split up even if it makes them poorer -- the legal industry has very little ability to manufacture relationship breakdown.

Most of those (myself included) who are interested in gettingthe government out of the marriage business do not mean that the government should not arbitrate - merely that it is patently obvious that the government is already in the business of acting as arbiter for extra marital households and at this point it would be more rational to create some sort of legal household contract that could simplify this arbitration without the necessity of redefining the historical term and reality of marriage.

I guess the issue, as I'd see it, with this line of thinking is the civil marriage as it exists now (with is dissolubililty, property and custody rules, etc.) is already in a sense a simplified form of marriage-like contract, and still we have the problem that a lot of people want it to work differently or go and form a household without actually making a contract. If the state produced some other form of contract (even if it didn't call it marriage) there's still be the issue of many people not bothering to take one out, and also I'd be concerned that real marriage would suffer blowback from the lessening of legal "union" requirements even if the names were different -- just as the thinning out of civil marriage to the current state has resulted in religious marriages breaking up more frequently.

You aren't looking hard enough. The divorce industry has already established the atmosphere in which it is extremely easy and legal to violate the marriage vows. The contract ceases to exist- from the state perspective it is merely a convenient basis upon which one can redistribute the assets of the wealthier spouse to the other spouse while the lawyers and courts make money off the process. This process is subsidized by the state. http://hawaiianlibertarian.blogspot.com/2011/12/blue-collar-blues.htmlAs to your first concern, the state doesn't have to recognize anything, and would only be the last resort, and certainly not for people who agreed to Church adjudication beforehand. Far from being a disaster, it would instead be illumination- the differentation between actual marriage and the laughable substitutes would be made manifest.

I've been doing a lot of thinking about this lately, and though I'm not sure what side of the fence I'm on here, I tend to lean towards the "state-should-get-out-of-the-marriage-business" side.

Here are a couple of thoughts:

1) One of your primary arguments (as i understand it; correct me if I'm wrong): The state can't get out of the marriage business because marriage (and its dissolution) involves property sharing, something which requires legal arbitration when there is a dispute.

My take: I know I simplified your point quite a bit, but to my mind the state is already doing what it would be doing if it got out of the marriage business entirely. In other words, I see why it is absolutely necessary for the state to resolve legal disputes, but I fail to see why marriage is required for the state to effectively arbitrate property disputes in a relationship. I would also venture to say that pre-nups are an acknowledgment by secular society that civil marriage is anything but an assurance that marriage "solves problems" legally speaking. Or that getting divorced is essentially any different than moving out of your girlfriend's place, from a legal standpoint.

2) Actually, I read the last paragraph of the post as an argument for, not against, the state ceasing to recognize "marriage" and replacing it with something like a civil union or contract. The state has already changed the essential definition of marriage - it's already changed the "definition of what a recognized or proper family is.

Anyone who thinks the issue will go away by simply increasing political pressure is sadly mistaken. The states which have already legalized gay marriage are sure as heck not going to turn around and ban it for a long, long time.

In my mind, we're already at the point where we have to protect our children, parishes, catholic institutions, you name it, from legal persecution. Part of that protection may involve a compromise on the actual use of the word "marriage". If the state no longer uses it, religious institutions cannot be legally forced to validate and sanction gay marriages.

I think, however, that one thing we can say for sure, no matter what happens, is that the church must be prepared to face intense persecution from those who promote the gay agenda. Whether gay marriage becomes legal in every state, becomes illegal in every state, or the state gets out of the marriage business altogether, gay activists will continue to launch attack after attack on the Bishops and all faithful Catholics who do not validate or accommodate gay marriages/civil unions/relationships.

It seems to me that the law has very little power to keep people from violating marriage vows. If someone is determined to leave a marriage, the most the law can do is determine on what terms that breakup occurs.

The contract ceases to exist- from the state perspective it is merely a convenient basis upon which one can redistribute the assets of the wealthier spouse to the other spouse while the lawyers and courts make money off the process.

Actually, what civil marriage does is it makes property common between the spouses. If the marriage breaks up, it then negotiates the division of goods. This may make the richer of the spouses poorer than before the marriage, but it makes both spouses poorer than when they were married, because their expenses go up on a per capita basis, and the amount of money divided between them is the same amount that they controlled in common before. (Thus, even in the case that is often complained about in which a woman married a much richer man and then leaves him, she clearly was better off when married because then she had joint control of all his assets and income, whereas after the divorce she gets only a portion.)

As to your first concern, the state doesn't have to recognize anything, and would only be the last resort, and certainly not for people who agreed to Church adjudication beforehand.

I know people like to imagine this, but I don't think it would work out this way. First off, the Church really has little leverage to arbitrate other than moral disapproval and refusing to marry people again (both of which it already does.)

Further, having religiously controlled marriages would result in people litigating whether they really belong to a denomination, whether they can leave the denomination and re-negotiate contracts accordingly, whether they define their religion the way their denomination does, etc.

Generally speaking, when the Church has been in the civil government business it's been bad for both the Church and the government. I've no desire to see it happen again.

All these, I think, make it far more worthwhile to continue to fight over a single definition of civil marriage, trying to make it harder to dissolve and keep it closer to a Christian undertanding of marriage, rather than taking the "we must destroy it to save it" approach and abolishing civil marriage completely.

As I said, as we can see with the way that non-marital breakups end up in court: the state can't keeps its hands off things even now when there isn't a marriage. I think it's unrealistic (given the function of a state) to think that we could somehow declare marriage and relationships to be a state free zone, since household relationships are foundational to how property, child custody and inheritance are dealt with.

I know I simplified your point quite a bit, but to my mind the state is already doing what it would be doing if it got out of the marriage business entirely. In other words, I see why it is absolutely necessary for the state to resolve legal disputes, but I fail to see why marriage is required for the state to effectively arbitrate property disputes in a relationship.

Basically, my argument is that if civil marriage ceases to exist (as it has, to an extent, by default in some segments of society) the state effectively has to invent it again. In this sense, if we got the state "out of the marriage business" we basically just cede the whole point, as the state would then immediately recognize all relationships that seem to form households as something that's effectively "marriage" and start negotiating such situations on terms that would probably be even more distasteful to us.

I do agree that sticking with the one term "marriage" sets up a long term fight which could well result in the church being persecuted, but I think that:

a) That's probably inevitable either way, so why concede a point and

b) A lot of the attacks on marriage aren't coming from people with sustainable lifestyles, and we'll probably see the cultural pendulum swing back to where most historical societies have been sooner or later. Thus, time is probably on our side in the long run.

Well, I think "a" is a good point, and as I mentioned in the second comment, we have to brace ourselves no matter what happens.

As for "b", I think the attacks could very well be taken up by the "children" of those who live immoral lifestyles: by those who grew up around them, we're indoctrinated by them, or adopted by them. I do hope you're right, however.

Finally, I would say from a theological perspective that an understanding of marriage primarily as a legal arrangement is an incorrect and dangerous one. The state has to make definitions and determine what constitutes a relationship, yes, but the secular government's understanding of marriage and relationships is not even in the same ballpark as a faithful catholic's.

Actually, I'm playing devil's advocate more than anything else...I pray that things turn around in our government and society, and I hope it happens soon.

the state would then immediately recognize all relationships that seem to form households as something that's effectively "marriage" and start negotiating such situations on terms that would probably be even more distasteful to us.

That's already happened to some extent in California, the home of "palimony".

I just discovered this post and read all the comments with interest, because I am one of those conservative Catholics who supports the alternative solution of getting government out of the marriage business. But I'm aware that my position puts me seemingly at odds with the Church's official stance. (Although It's not clear to me that the Church has even addressed the "third way" solution of removing government involvement with marriage.)

This discussion has not helped my understanding. I still feel like I'm missing something.

I envision the government going through all the laws, and anywhere where it finds the word "marriage", it crosses that out and replaces it with "civil union". Problem solved. (?)

The Church today will not allow you to have a Sacramental Marriage without also getting a civil marriage. That rule could remain in place -- Catholics who marry would be required to get a civil union in addition to taking the Sacrament.

The government would probably be forced to develop something like a "common law civil union" to arbitrate disputes in which there is no civil union, but I don't see that as being any worse that the situation we have today with people showing up in court after shacking up and having children out of wedlock.

What this solution would accomplish is to release the tension in the "gay marriage" debate in a big way. Catholics would not be pressured to violate their conscience by using the word marriage in a way that contradicts their faith. Each church (or any other organization for that matter) could define "marriage" in any way it pleased. Everybody would have access to the benefits of civil unions. (Including, just for example, unmarried adult siblings who want to combine their property or grant one another decision-making power in case of a hospitalization.)

Would this satisfy the gay rights folks? I tend to answer yes.

Would this satisfy the social convservatives? That's less clear, although I consider myself a social conservative and it would satisfy me.

What's not to like? That's the question I hoped to find in this post & the comments, but I didn't see it.

Any two people can argue over who owns what. It happens with neighbors all the time who don't necessarily like each other. The problem is the assumption that people who live together in a household and have sex and produce children are required to comingle their assets. With more and more women claiming autonomy and working for themselves, the "roommate" paradigm is nothing the state has to involve itself in. If you put both names on the house or car, or he owns the house and she owns the car, etc., normal contract law will apply.

I don't believe I should be required to get state permission in order to receive a sacrament from my church. Don't we have a law forbidding my free exercise of my religion? What will I need next? A holy communion license?

That having been said, there is nothing stopping the state from setting up a "civil union" available to any two people who want to enter into it, male + male, male + female, brother + sister, mother + son, with all the protections currently granted by civil marriage. Then if you wanted to entangle the state in your personal relationship you could choose to, otherwise you could choose not to.

I always see this as a violation of church and state. Marriage is a religious ceremony, so the government shouldn't be able to define what is or isn't a marriage - it can create a "civil union" with all of the same rights - or lack there of like over taxation and such. But just as religion has been removed from everything in government, the government shouldn't not be in any "religion" other than when it comes to breaking the law - like murder and such.

So to me, the whole should this or that group be able to 'marry' is a question to the church they belong to. If the state wants to grant a civil-union rights - that is in their arena. So I think they are completely missing the point, and I suspect that as soon as such a law makes it to the supreme court where the government forces a meaning on a religious ceremony it will be struck down as it is starting to define a "state religion" or at least what such a religion must allow, which is clearly out of its jurisdiction. Of course these days, the supreme court is such a political beast that it's true purpose is lost...

I guess I'm unclear how the proposal you outline would constitute "getting the state out of the marriage business". Really, all it would be doing would be changing the name from "marriage" to "civil union" and then removing all restrictions on who is allowed to get married. If we're okay with the polity doing that, I don't see why a name change is necessary. As Catholics, we already don't recognize many civil marriages as being "real" marriages in the sense that the Church means the term, so why get hung up on the term "marriage"?

I would tend to think that that actual problem being debated is not a terminology one. All societies have treated some people as forming a household which the society views as a single entity rather than as a group of independent individuals who happen to be near each other. Different societies have had different rules as to who controls that household, to what extent, and if the household can break up, how it's assets are to be divided and what continuing obligations the former members have to each other.

Typically, this household definition has centered around marriage to an extent, since it's through marriage that people had offspring and passed down property, social position, name, etc.

The Church has, for its part, encountered this extant social structure, has provided Sacramental Marriage as a special source of graces for those who head such a household, and has stated its own laws for who may marry and how. Because the West has been primarily Christian for the last 2000 years, there has been a lot of similarity between Church rules and state rules during that time. (Many states didn't allow divorce or did so very little. Polygamy and incest were banned, etc.)

Now I think it's natural that Catholics, if they believe the Church is right in its understanding of marriage, would want to see that of the broader society reflect the Church's understanding as closely as possible. However, even if we set aside religious considerations entirely, our society, like any society, clearly has to recognize which groups count as valid households and which don't. And since our state is so large by historical standards, and has all sorts of involvements with marriage in determining taxes, ownership, inheritance, legitimacy of offspring, etc., the state necessarily has to determine who is married (necessitating a definition of marriage).

Given that, it seems to me that whether the state uses the name "marriage" is irrelevant since that's clearly what it's doing.

The problem is the assumption that people who live together in a household and have sex and produce children are required to comingle their assets. With more and more women claiming autonomy and working for themselves, the "roommate" paradigm is nothing the state has to involve itself in. If you put both names on the house or car, or he owns the house and she owns the car, etc., normal contract law will apply.

This just strikes me as unrealistic. People who are living together for any length of time will necessarily end up with all sorts of muddles in regards their assets, especially once they get into arguing about who contributed more time and other non-monetary assets to allow the other to accumulate actual cash, etc. All societies up until this point have had to deal with these issues, and I don't see how we can imagine that human nature has changed so much that we no longer do.

I don't believe I should be required to get state permission in order to receive a sacrament from my church. Don't we have a law forbidding my free exercise of my religion? What will I need next? A holy communion license?

This I do agree with. The fact that the Church in general requires at this place and time that people have a civil marriage license in order to get married in the Church is more an accident of the times than it is necessary. I don't think that how the state defines marriage means that Church has to accept it, or that in all situations the Church would have to require that people be recognized as civilly married in order to be married in the Church.

However, since I think that society does need to have some definition of marriage it seems to me only natural that Catholics would want that definition to match as closely as possible their own.

Wait, wouldn't it be instructive if the government stopped using the terminology of "marriage"? Catholics already believe there is an important ontological difference between sacramental marriage and the civil convention of government "marriage". Wouldn't it be a big help to us if those two very different things were called by different names? Wouldn't that make it easier to catechise our children?

Now, I agree it seems that government needs a way to deal with multi-person households as a single unit. But why do we need to equate that with marriage? What about a monastary full of monks? Don't we want the government to treat them as a single entity? What about grown siblings who never married? What about a large household of three or four generations that pool their resources?

And for that matter, if the religious freedom of Catholics to use their own definition of marriage is protected, why the heck do we care if a gay couple is allowed to pool their resources before the law? My objection to gay marriage is that my faith teaches me that marriage has a specific definition that can't be changed. There's no Catholic Sacrament of civil unity, so why not drop the issue at that point?

Wait, wouldn't it be instructive if the government stopped using the terminology of "marriage"? Catholics already believe there is an important ontological difference between sacramental marriage and the civil convention of government "marriage". Wouldn't it be a big help to us if those two very different things were called by different names? Wouldn't that make it easier to catechise our children?

I'm not sure it would necessarily be all that helpful, especially as I don't see it as likely that culturally everyone but Catholics (or Catholics and other serious Christians) would stop using terms like "marriage" and "spouse" just because the government did.

There's a big difference between people using the word marriage, and the government enforcing a single definition of marriage in a top-down fashion... would catholic catechesis be harder if the government had an officialy position that Christianity was the same thing as sola scriptura protestantism? I think so. Likewise, on this issue, if we insist the government endorse our view of marriage, (and we inevitably lose) we are setting ourselves up to be objectors to a monolithic legal definition of a religious term instead of one religion among many in a genuinely pluralist society.

And it's helpful in a second way -- it releases the tension of the gay marriage debate. I don't know if you've noticed, but there's a pretty toxic divide running through society over this issue.

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